Reeder v. Cox

• Decision Date: 11 October 1928
• Docket Number: 1 Div. 487
• Citation: 218 Ala. 182,118 So. 338
• Parties: REEDER v. COX.
• Court: Alabama Supreme Court

118 So. 338

218 Ala. 182

REEDER v. COX.

1 Div. 487

Supreme Court of Alabama

October 11, 1928

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Bill to quiet title by Ida L. Reeder against J.M. Cox. From a decree for defendant, complainant appeals. Reversed and rendered.

Deed though reserving vendor's lien, vests legal title in grantee.

This bill was filed by the appellant against the appellee, under the statute to quiet title to certain real estate located in the city of Mobile. The evidence shows without dispute that the complainant was in peaceable possession when the bill was filed, and that no suit was pending to test her title.

Both parties claim through Naranka S. Mears. Appellee's title which was sustained by the decree of the circuit court, rests upon the following facts:

During the year 1922 appellee, under a contract with Mrs. Mears furnished material and labor for painting the house on the premises; the work being completed about the 2d day of September. On February 20, 1923, appellee, as the original contractor, in pursuance of the provisions of section 8836 of the Code of 1923, filed in the office of the probate judge of Mobile county a verified statement claiming a lien on the property, for the price of the material so furnished and the work performed, amounting to $103.88, which was duly recorded in the record of mechanics' liens, but not entered on the index of the volume in which it was recorded, but was entered on the general direct and reverse indexes of conveyances etc.

On March 2, 1923, appellee instituted suit in the circuit court of Mobile county to enforce the lien, but did not file or cause to be filed a lis pendens notice in accordance with the provisions of article 5, c. 273, of the Code of 1923.

After a delay of nearly three years, this suit terminated in a judgment, on service by publication, which was perfected on February 9, 1926, and a judgment by default was rendered on the 13th day of February, 1926, establishing the appellee's lien, and in due course the property was sold by the sheriff of Mobile county, on June 4, 1926, appellee being the purchaser and received a deed from the sheriff under which he claims title.

On June 6, 1924, more than fifteen months after appellee filed the verified statement in the probate office, and fifteen months after the suit was filed, Mrs. Mears, by warranty deed, on a recited consideration of $2,250, sold and conveyed the property to Bertram H. Pake; and on January 27, 1925, Pake and wife by like deed, on a recited consideration of $3,750, sold and conveyed the property to complainant's husband, J.F. Reeder, and he, on June 7, 1926, "in consideration of love and affection and one dollar ($1.00)," sold and conveyed the property to complainant.

It appears without dispute that in the deed from Reuben L. Whatley and wife to Naranka S. Mears, of date of October 27, 1919, and entered of record October 28, 1919, Whatley retained a vendor's lien to secure certain unpaid notes representing the balance of the purchase money due from Mrs. Mears to Whatley. Satisfaction of this lien was entered of record by Whatley on the 29th day of January, 1925.

Pake testified that:

"The deed about which I testified to a few minutes ago stated the true consideration moving from me to Mrs. Mears for the conveyance to me of the property described in the deed, *** and the deed from Mrs. Mears to me calls for $2,250 on its face, and I drew my check for $2,250 payable to Mr. Rickarby, and he disbursed the money. *** This vendor's lien of about $1,500, as mentioned in Mr. Rickarby's opinion, was paid out by him out of said check for $2,250. I do not remember whether I knew anything about the vendor's lien before I received Mr. Rickarby's opinion, but of course I knew about it when the opinion was given to me. I did not attend to the disbursements of the money. *** In my negotiations to buy from Mrs. Mears, I did not deal with her personally, but I had my dealings with her husband about the property."

The evidence shows without dispute that Pake purchased the property without actual notice of Cox's mechanic's lien or the pendency of the suit to enforce the lien or of facts sufficient to put him on inquiry.

The consideration for the purchase by Reeder from Pake was paid by the conveyance of property located in Mobile, owned by Reeder, subject to a mortgage, which was assumed by Pake, and money borrowed from Pake's father by Reeder, the payment of which was secured by a mortgage on the property in question, and it appears without dispute that Reeder purchased without actual notice of respondent's mechanic's lien or the suit to enforce same, or of facts sufficient to put him on inquiry.

Rickarby & Coley and Harry Pillans, both of Mobile, for appellant.

D.B. Cobbs, of Mobile, for appellee.

BROWN, J. (after stating the facts as above).

The statute under which the bill in this case was filed authorizes:

"Any person *** in peaceable possession of lands, whether actual or constructive, claiming to own the same, in his own right or as personal representative or guardian, and his title thereto, or any part thereof, is denied or disputed, or any other person claims or is reputed to own the same, or any part thereof, or any interest therein, or to hold any lien or incumbrance thereon, and no suit is pending to enforce or test the validity of such title, claim or incumbrance" to "bring and maintain a suit in equity to settle the title to such lands, and to clear up all doubts or disputes concerning the same." Code 1923, § 9905; Weaver v. Eaton, 139 Ala. 247, 35 So. 647. (Italics supplied.)

And to this end the statute provides:

That the bill "must describe the lands with certainty, must allege the possession and ownership of the complainant, and that the defendant claims or is reputed to claim some right, title, or interest in or incumbrance upon such lands, and must call upon him to set forth and specify his title, claim, interest or incumbrance, and how and by what instrument the same is derived and created." Code 1923, § 9906.

And: "If the defendant shall answer claiming any estate or interest in, or incumbrance upon such lands, he must, in such answer, specify and set forth the title, claim, interest, or incumbrance so claimed, and if not claimed in or upon the whole of the lands, he must specify and describe with sufficient certainty, the part in or upon which the same is claimed, and the manner in which, and the sources through which such title, claim, interest, or incumbrance is claimed to be derived and created." Code 1923, § 9907.

Our decisions are to the effect that the issues presented by a bill filed under this statute, strictly following its prescription as to pleading, will not permit the complainant to establish a mere equitable title or right, such as a right to enforce a resulting trust as against a legal title specifically avowed in the answer, for the reason that:

"It is a perversion of the purpose of the statute to permit the complainant, upon mere statutory averments, to obtain relief upon general principles of equity." Fowler v. Alabama Iron & Steel Co., 154 Ala. 497, 45 So. 635; Sloss-Sheffield Steel & Iron Co. v. Board of Trustees of the University of Alabama, 130 Ala. 403, 30 So. 433.

For like reason we now hold that the complainant here, on mere statutory averments, was not entitled to assert the right of equitable subrogation to the vendor's lien of Whatley.

However, where, as here, the complainant asserts not only peaceable possession, but ownership of the property, and the answer specifically avers the legal title to be in the respondent, the issue embraces everything necessary or essential "to settle the title to such lands, and to clear up all doubts or disputes concerning the same." (Italics supplied.) Code, § 9905; Adler et al. v. Sullivan, 115 Ala. 582, 22 So. 87.

As a general rule, one who would assert that he is an innocent purchaser without notice must so aver in his pleading, and this is the rule as to a respondent in a proceeding under ...